United States District Court, D. Maryland
IN RE SMITH & NEPHEW BIRMINGHAM HIP RESURFACING (BHR) HIP IMPLANT PRODUCTS LIABILITY LITIGATION
Pure Play Orthopaedics, et al. Jesse Eugene Kemp, Civil No. CCB-19-372
Catherine C. Blake, United States District Judge
before the court is Jesse Eugene Kemp's
("Kemp") motion to remand for lack of complete
diversity. See 28 U.S.C. § 1447(c). Smith &
Nephew, Inc. ("Smith & Nephew") removed this
case from the District Court of the 136th Judicial District
of Jefferson County, Texas, and contends that this court has
jurisdiction under the fraudulent joinder doctrine. For the
reasons that follow, the court will grant Kemp's motion.
The issues have been briefed and no oral argument is
necessary. See Local Rule 105.6 (D. Md.
November 16, 2011, Kemp underwent a total hip arthroplasty at
Baptist Hospitals of Southeast Texas ("Baptist
Hospitals") in Beaumont, Texas. (Am. Compl. ¶ 30,
ECF No. 1-3). Kemp's surgeon, Doctor Ronald E.
Talbert ("Doctor Talbert"), used Smith &
Nephew's hip-implant components in an
"off-label" configuration that had not received FDA
approval. (Id.). In fact, the FDA had thrice.refused
to approve the configuration. (Id.). Kemp alleges
that Smith & Nephew sales representatives Chad Cross and
Michael Taylor promoted this device configuration and
"observed, commented on, and assisted with device
implantation surgery and product selection."
(Id. ¶¶ 44-46). Kemp alleges that the
off-label configuration's metal-on-metal components
created "friction allowing metal debris to enter the
space around the hip implant and the bloodstream."
(Id. ¶ 31). As a result, Kemp suffered damage
to surrounding tissue and bone. (Id.). On October
20, 2016, Kemp underwent revision surgery. (Id.).
5, 2018, Kemp sued Pure Play Orthopaedics,  JB Orthopaedics,
Chad Cross, Doctor Talbert, Beaumont Bone & Joint
Institute, P. A. ("Beaumont Bone"),  and Baptist
Hospitals in the District Court of the 136th Judicial
District of Jefferson County, Texas. (See Notice of
Removal at 2, ECF No. 1).
October 17, 2018, Kemp filed an Amended Petition, adding as
defendants, Smith & Nephew Consolidated, Inc.,
Smith & Nephew, Inc., and Michael Taylor. (Notice of
Removal at 2; ECF No. 1 -3 at 3). Kemp also corrected the
names of defendants JB Orthopaedics and Pure Play
Orthopaedics to JB Orthopedic Appliances, LLC, and Pure Play
Orthopaedics Sales, Inc., respectively. (ECF No. 1-3 at 3).
the defendants fall into three categories: (1) the health
care provider defendants-Doctor Talbert, Beaumont Bone, and
Baptist Hospitals; (2) the sales representative
defendants-Michael Taylor, Chad Cross, JB Orthopedic
Appliances, LLC, and Pure Play Orthopaedics Sales, Inc.; and
(3) the Smith & Nephew defendants. (Am. Compl.
¶¶ 12, 16-17).
alleges an array of claims against the defendants, including:
negligence, negligence per se, negligent misrepresentation,
design defect, deceptive trade practices, conspiracy, breach
of express warranty, fraud, and fraudulent concealment.
(Id. ¶¶ 47-112).
argues that remand is appropriate because complete diversity
is lacking-all of the defendants, except for Smith &
Nephew, are citizens of Texas for diversity purposes, as is
Kemp. Smith & Nephew counters that complete diversity
exists because all of the Texas defendants were fraudulently
joined. To establish fraudulent joinder "the removing
party must show either 'outright fraud in the plaintiffs
pleading of jurisdictional facts' or that 'there is
no possibility that the plaintiff would be able to
establish a cause of action against the in-state defendant in
state court.'" Johnson v. American Towers,
LLC, 781 F.3d 693, 704 (4th Cir. 2015) (quoting
Hartley v. CSX Tramp., Inc., 187 F.3d 422, 424 (4th
Cir. 1999)) (emphasis in original). This is an exceptionally
heavy burden that is "more favorable to the plaintiff
than the standard for ruling on a motion to dismiss under
Fed.R.Civ.P. 12(b)(6)." Johnson, 781 F.3d at
704 (quoting Mayes v. Rapoport, 198 F.3d 457, 464
(4th Cir. 1999)). The removing party must demonstrate that
"the plaintiff cannot establish a claim even after
resolving all issues of law and fact in the plaintiffs
favor." Johnson, 781 F.3d at 704 (quoting
Hartley, 187 F.3d at 424). A plaintiffs claims
against non-diverse defendants "need not ultimately
succeed to defeat removal"; rather, the plaintiff
"must show only a 'glimmer of hope' of
succeeding against the non-diverse defendants."
Johnson, 781 F.3d at 704 (citing Marshall v.
Manville Sales Corp., 6 F.3d 229, 223 (4th Cir. 1993);
Mayes, 198 F.3d at 466).
& Nephew fails to meet this burden. Smith & Nephew
contends that Kemp cannot establish a cause of action against
the health care defendants based on Doctor Talbert's
off-label use of the metal-on-metal device because the Food,
Drug and Cosmetic Act ("FDCA") "codifies"
a physician's right to use a device off-label.
See 21 U.S.C. § 396 ("Nothing in this
chapter shall be construed to limit or interfere with the
authority of a health care practitioner to prescribe or
administer any legally marketed device to a patient for any
condition or disease within a legitimate health care
practitioner-patient relationship."). But Smith &
Nephew is mistaken. While the FDCA does not provide a federal
cause of action against physicians for off-label use of
devices, or "limit or interfere" with a
physician's authority to administer medical devices, it
does not displace or narrow traditional state-law negligence
claims against physicians who breach a duty of care in using
a device off-label. Smith & Nephew has put forth no
argument to explain why Kemp cannot succeed on a traditional
negligence cause of action.
Texas, health care liability claims ("HCLCs"),
which include claims related to alleged "departure[s]
from accepted standards of medical care, or health care . . .
which proximately result in injury or death of a claimant,
whether the claimant's claim[s] or cause[s] of action
sound in tort or contract" are governed by the Texas
Medical Liability Act ("TMLA"), Tex. Civ. Prac.
& Rem. Code §§ 74.301-.303, et. seq.
TMILA § 74.001 (a)(13); see also Texas West Oaks
Hosp., LP v. Williams, 371 S.W.3d 171, 179-80 (Sup. Ct.
Tex. 2012) (explaining that "the breadth of the HCLCs
include causes of action against physicians and health care
providers for negligence in the provision of 'medical
care, or health care'" (citing § 74.001
(a)(13))). Kemp argues that he has fulfilled the statutory
requirements of the TMLA. including by serving expert
reports, and that the TMLA's two-year statute of
limitations is equitably tolled in his case. (Pl's Mot.
Remand at 2-3, ECF No. 12; Am. Compl. ¶¶ 117-20;
§§ 74.251(a), (b), 74.351). Smith & Nephew has
presented no argument to the contrary.
the sufficiency of Kemp's pleadings,  Smith &
Nephew argues that Kemp "fail[ed] to make allegations
connecting the decision to use the particular combination of
devices" to his injuries. (Def.'s Resp. Opp'n at
9, ECF No. 25). But Kemp pleads that the off-label use of
Smith & Nephew's metal-on-metal device resulted in
the production of metal debris, which resulted in toxic
metallosis and required revision surgery. (Am. Compl.
¶¶ 30-31). This suffices to connect Doctor
Talbert's decision to use the device off-label to
Kemp's resulting injury. And Kemp has further alleged
that Doctor Talbert "was negligent, and his conduct fell
below the standard of care because he implanted an
unapproved, untested combination of parts into the Plaintiff
without obtaining adequate informed consent and without
having any reasonable medical basis" for believing the
metal-on-metal configuration was safe. (Id. ¶
78). Kemp has adequately pled his claim of negligence.
Smith & Nephew has not demonstrated that there is
"no possibility" that Kemp can establish a cause of
action in negligence against the health care provider
defendants, the court need not consider all of Smith &
Nephew's remaining arguments. Smith & Nephew ...